Appellate Court Overturns Conviction of Driver Carrying Passenger with Loaded Gun, Passenger Charged with Assault with a Deadly Weapon (CA Penal Code 245)

Rabin Nabizadeh
January 19, 2015

In a not-so-surprising recent appellate court decision, the conviction of a 27-year-old man was overturned.  The case seemed simple at first glance:  the man (driver of a vehicle) was arrested and subsequently convicted in 2012 of a violation of California Penal Code 26100 which states that an individual cannot knowingly allow another person to ride in their vehicle with a loaded gun.  Upon appeal, defense attorneys argued that there was no way for anyone to prove that the driver knew that his passenger’s gun was loaded, only that he had a gun with him.

This legal distinction is important, mainly because knowledge of whether or not another person’s firearm is loaded is nearly impossible to prove.  One would have to have a great deal of experience with a particular type of gun in order to determine whether or not it is loaded; otherwise, drivers normally take their passenger’s word for it.  Here, the driver of the vehicle is blamed for the actions of a passenger, actions that the driver may have had absolutely no control over.

Understandably CA PC 26100 was originally intended to curb the possibility for gang-related violence, like drive-by shooting, in California.  It is often referred to as the “Drive-By Shooting” law and or charges of assault with a deadly weapon (CA Penal Code 245).  In fact, because of his gang associations, the individual in this particular case may be looking at another trial on different charges.  The charge itself is not serious when compared to other violations of similar type.  A violation of this law is a misdemeanor, carrying with it the penalty of up to 1 year in county jail and a $1,000 fine.


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